Corruption: Nature and Definition - Shodhganga
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Chapter II
Corruption: Nature and
(DefinitionChapter - II
CORRUPTION : NATURE AND DEFINITION
AN OVERVIEW
Corruption is a deviation from normal human behaviour in a geo-
political setting whereby causing the derailment of individual and
institutional accountability, transparency and natural justice. Corruption is
a barometer of a nations' development and decline which determines its
stanching stature and estimation among the country of nation-states. But of
late, corruption has become a way of national life and has already been
institutionalized beyond the comprehension of ordinary human
imagination.
Although, no statistical data can possibly be compiled to assess the
extent of corruption amongst our political leaders yet in view of the
experience many of us have had with the working of our bureaucracy, it is
hardly necessary to convince ourselves of the pervasiveness of this
phenomenon. Eradication of this civil form our society is perhaps
inconceivable at the present juncture of our developmental process' and all.
We can hope for its prevention or control to the possible extent within the
parameters of our socio-political and economic environment.
Even this, it is needless to say that it involves behavioural change
and law is only one of the instruments for such a change. Fortunately,
however, corruption in the form of giving and taking of illegal gratification
has not yet become a customary behaviour in this country. It is therefore,
conceivable that law can still play an effective role in bringing about a28
change is not too distant in future provided that necessary political will
along with a strong and viable implementation machinery supported by a
judiciary responsive to the purpose or objects of the law, exists side by
side.
The definition is essential to circumscribe the boundaries of a field
of inquiry. It helps in making a coherent estimation of a particular
phenomenon and arising at specific conclusion. The definition is all the
more significant to avoid vague generalisations.
Corruption is a value loaded term and in a general sense may
include a wide range of activities within its ambit. However, for various
reasons, which are not relevant to be recorded for the purposes of the
present study, all such activities and behaviours of the individuals may not
be included within the boundaries of the definition of 'corruption'. Suffies
is to mention here that from moral, ethical or religious standards, a
particular act may be a 'corrupt act' but it may not be so from sociological,
criminological or legal standards. Moreover, a particular behaviour may be
an act of corruption in a specified time frame, whereas the same behaviour
might not be an act of corruption in another specified time frame.
Therefore, for the purpose of present study, the term 'Corruption'
may be defined and discussed nature of corruption, definition of
corruption, the sociological, criminological and legal standards only.
Again, it is pertinent to point out here that a particular act may be an act of
'corruption' from sociological point of view, but it may not be so from the
legal point of view. However, an act which is legally defined as an act of29
corruption may also be so from the sociological view point. Thus, such
niceties may not be overlooked while defining the phenomenon of
corruption.
Webester's 1 Universal Dictionary (1961) provides the meaning of
the word 'corrupt' as (1) to make or become evil or morally bad, (2) to take
or become impure
The word 'corruption' means, according to Webesters as the act of
corrupting or state of being corrupt. Such meanings of the word
'corruption' as given in Webester's Dictionary have religious-historic
reasons.
Webester's Third New International Dictionary (1961) defines
'corruption' in an entirely different context. It defines 'corruption' as
'inducement by means of improper considerations to commit a violation of
duty' interlinked and are inseparable. However, 'corruption is a wider
term and has wider connotations than the term 'bribary'.
A. CORRUPTION: NATURE
Like that of several other socio-economic offences, corruption
stands out as an offence which affects the community as a whole. It is not
just an offence between the perpetrator of a traditional crime like murder,
theft or rape and an innocent victim. In fact and reality the bribe-giver and
the bribe-taker are equally guilty.3 Although, corruption undoubtedly
1. Webester's Second New, International Dictionary of English Language (Unabridged) U.S.A.,
Second Edition (1934).
2. Webester's Third New International Dictionary of English Language (Unabridged), U.S.A.
(1961).
3. Howard E. Freeman and W.C. Jones, "Social Problems", 2nd Ed. 1973, p. 245.30
affects the morality of the people in general, but its overwhelming impact
is on the economic health of a nation and accordingly corruption will have
to be classified as an 'economic offence'. It goes without saying that the
poor strata of our society, which has limited paying capacity, suffers the
most due to administrative corruption and besides this, the economy of a
country beset with the evil of corruption is affected due to the generation
of unaccounted or 'black money' which is a major factor responsible for
unbridled inflation. The offence of corruption appears to have been
regarded more as an economic evil rather than immoral hazard and
accordingly corruption deserves to be classified as an economic offence.
It is difficult to apportion the blame for corruption as between
officers at the highest level and their subordinates. It is true that economic
deprivation in the middle and lower class officials in the past may have led
to a large number of corrupt practices but this, in itself, does not absolve
the superiors whose lust for higher and higher standard of living .is never
satiated. Then again, corruption like sacrifices, starts at the top and
percolates down to the bottom.5
One more distinguishing feature of the offence of corruption is that
the victim as also the beneficiary of the offence are equally interested in
4. See, Gazettee of India, 23d November 1946, part V, Statements of objects and reasons, which
says :
"The scope for bribery and corruption of public servants increased enormously by war
conditions and though the war is now over, opportunities for corrupt practices will remain for
considerable time to come. Contracts are being terminated: Large amounts of the Government
surplus stores are being disposed of; there will for years be shortages of various kinds
requiring imposition if controls, and extensive schemes of postwar reconstruction, involving
the disbursement of very large sums of Government money. All these activities of its
continuance or extension in figure are such as to justify immediate and drastic action to stamp
it out".
5. Singh, Surendra, "An Anatomy of Corruption in India", The Journal of Correctional Work,
Vol. 19, 1973, p. 50.31
maintaining utmost secrecy about their transactions. This aggravates the
difficulty on the part of the enforcement staff in obtaining vital evidence
which will help the prosecutor to secure conviction in deserving cases.
B. CORRUPTION : DEFINITION
The simplest definition of corruption is improper or selfish exercise
of power and influence attached to a public office or to a special position
in public life. In the legalistic jargon of the Indian Penal Code, a corrupt
person is one who "being of expecting to be a public servant, accepts or
obtains, or agrees to accept, or attempts to obtain, from any person, for
himself or for any other person, any gratification whatever, other than legal
remuneration, as a motive or reward for doing or forbearing to do any
official act, or for showing or forbearing to show, in the exercise of his
official functions, favour or disfavour to any person, or for rendering or
attempting to render any service or disservice to any person, with the
Central or any State Government or Parliament or the Legislature of any
State, or with any public servant as such".6
In other words, any act of commission or omission by a public
servant for securing pecuniary or other material advantage directly or
indirectly for himself or his family or friends is corruption.
According to Peter H. Odegard , corruption is in a sense a product
of the way of life of an acquisitive society where 'money talks', where
what 'works' is justified, and where people are judged by what they have
6. Dwivedy, Surendranath and Bhargava, G.S. "Political Corruption in India", Popular Book
Services (1967), New Delhi,p. 1.
7. Peter H. Odegard, "Political Corruption - United States, quoted by John B. Montereo in his
"Corruption : Control of Maladministration, Manaktalas, Bombay, p. 112.32
rather than what they are. The over-emphasis on the general cultural milieu
may suggest that spiritual values as distinct from material pursuits are an
antidote to corruption.
This is not to say, however, that a public servant always accepts or
obtains illegal gratification for conferring a benefit to some one
immediately. At times gratification to a public servant is given by a person
for securing a future advantage. Further, a public servant may not always
be acting by himself to solicit illegal gratification. He may secure the same
gratification through an intricate network of intermediaries and the
gratification again may take various forms. It is obvious, therefore, that a
precise and perfect definition of corruption is difficult to formulate.
A broad definition is that "corruption is the betrayal of public trust
for individual of group gain.8 This definition, it is needless to say, does not
define the content of 'public trust' and accordingly it has a tendency to
indicate that it speaks of or it presupposes some sources of wealth which a
public servant can take or use to his private advantage. Accordingly,
therefore, the definition appears to be more suited to cases of
misappropriation of public funds by a public servant, which represents only
a category of corruption. From this angle, the position will not be very
much different if corruption is defined as misappropriation of government
properties or funds through criminal breach of trust".9
There are other definitions which have sought to be more precise.
Thus, it has been said that "a public official is corrupt if he accepts money
8. E.A. Lkoiwak, "Public Officials and Corruption in Nigeria", Indian Journal, of Public
Administration, 1987, p. 62.
9. A. Kakworthy, Shorter Oxford English Dictionary, Vol. 1, p. 432.33
or money's worth for doing some thing that he is under a duty to do any
way, or that he is under duty not to do, or to exercise a legitimate
discretion for improper reason".10 Obviously, as per this definition, the act
of using one's official position to deliberately advance one's personal
goals, will be corruption. However, it appears to emphasize more on two
categories of corrupt practices by public servants namely, accepting or
obtaining of illegal gratification and the abuse of official position for
securing pecuniary advantage. This definition also fails to take within its
fold such categories of corruption as misappropriation of government
property or funds through criminal breach of trust or otherwise.
A definition, which is commendable for it's comprehensiveness, if
not precision, is that of Joseph G. who has rightly pointed out that there
may exist a whole range of definitions of official corruption but basically it
means the use of public office with its prestige, influence and power in
order to make private gains. This gain need not necessarily be monetary
but it amounts to breach of laws and regulations in force, based on and
supported by established attitudes shared in varying degrees by all
members of society including public servants.11
C. THE PHENOMENON OF CORRUPTION
The phenomenon of corruption might have a close correlation to the
1 'j
ethos of developmental activities that followed on the heels of the second
10. Macmillan, M., "A theory of Corruption" Sociological Review, 1961, p. 183-84, cited in
Literature on "Police Corruption" by A.K. Simpson, 1st Ed. 1977, p. 8.
11 . Joseph G. Jabbra, "Bureaucratic Corruption in Third World: Causes and Remedy", Indian
Journal ofPublic Administration, Vol. 22, 1976, p. 674.
12. Arnold J. Heidenheimer, "Political Corruption - Reading in Comparative Analysis" (Holt,
Reinehart and Winston, 1970).34
world war. Massive injection of money for reconstruction of a shattered
economy coupled with unusual discretionary powers in the hands of higher
and middle executives of licensing, spending, controlling distribution of
essential commodities etc. led to greater and greater corruption.13
Indeed, there are thinkers who feel that corruption in administration
has certain positive aspects too since it helps in speeding up the
administrative process. This may be partly true only in the context of speed
money14, but that is only a part of the story. It is now widely known that a
large portion of public funds are being siphoned off by responsible public
servants and even bank officials entrusted with the task of advancing loans
to lowest category of farmers and entrepreneurs are deducting a sizeable
portion of the loan in the name of commission.15
D. SIGNIFICANCE OF CORRUPTION
Irrespective of what our legislators may have in their mind while
enacting the Prevention of Corruption Act, the overall impact of corruption
in developing countries like India is growing demoralization of our people.
We are presently in the midst of a war against poverty, malnourishment
and economic disparities of our people. To wage a war of any kind
whatsoever what is really important is the morale of the people. It is
needless to say, that such morale is presently lacking. What has happened
in the past is that a minority of the people have been enriched at the cost of
vast majority. There is again another adverse effect of corruption which is
by far the worst. It is a common belief today that much of the corruption in
13 . Santhanam Committee - A Report, p. 8-13.
14 . The words "speed Money" are used to denote small amounts paid to the public servant to
speed up the issue of permits, Licences or other Administrative.
15 . Agarwala, S.K., Public Servant's Offence of Corruption and Sentencing by Supreme Court of
India, The Indian Journal of public Administration, vol. 26 (1980), p. 938.35
public servants has begun from the highest level. Unprecedented wealth
has been accumulated not only by some of the political leaders but even by
a large number of top and middle executives.16
The disenchanted masses today can not be expected to rise to the
occasion and extend their willing hands to the leadership and the executive
staff so as to enhance the momentum of development. People of India, it
has been very aptly pointed out, can tolerate poverty and deprivation for
quite sometime, but not their corrupt rulers.17
E. CAUSES OF CORRUPTION
Corruption is an offence like that of many other offences punishable
under the criminal law of our country. Basically, therefore, it is the
sociologists and the criminologists who can delve deep into causes of
corruption. For that matter, the causes of crime, in general, equally applied
to the offence of corruption. However, it can perhaps be suggested that
certain special socio-economic and political factors do accentuate the
tendency to commit these offences which could be bracketed together
under the title of corruption. The aforesaid factors can be summarised in
the following works.
The aftermath of the second World War accompanied by scarcities,
controls and the flush of easy money was perhaps one of the factors
responsible for corruption.18
16 . From some of the decided cases, thus fact becomes sett evident. Thus see Rao Shiv Bashadur
Vs. State of Vindhya Pradesh, 1954 Cr.L.J. 910 (S.C.), S.A. Venkataraman V. The State 1958
Cr.LJ. 131 (S.C.) State of Gujarat V. Raghunath Vamanrao Baxi, A.I.R. 1985 SC 1092.
17 . Singh, L.P., "Morality in Public Affairs", Administrative Change, Vol. II, No. 2, 1984, p. 163.
18 . Santhanam Committee Report, 1964, p. 8-9.36
The second factor was the fall in real income of the various
categories of public servants.
According to Myrdal, the extent of corruption has a direct bearing
on the stability of the government of a state.20 He thinks that the main
factors responsible for increasing corruption in the developing countries
are :
1. Little loyalty to the community as a whole, whether on the local or
the national level. This, according to Myrdal, implies stronger
loyalty to less inclusive groups family, cast, ethnic religious or
linguistic community.
2. The state of transition from colonial to self government.
3. Wide discretionary powers and low level of real wages.
4. Cumulative effects working within the system of corruption itself.
Some of the major factors that have been regarded to be responsible
for corruption by different scholar are also worth taking into account:
(i) A defective electoral system which had led to an unholy alliance
between the politicians and big businessmen. The parties raise funds
for the election expenses from business houses in exchange for
favours done or to be done in future. The problem aggravates
alongwith the increase in the cost of election.
19 . Santhanam Committee Report, 1964, pp. 43-45.
20 . Gunnar Myrdal, "The Asian Drama", Kalyani Publisehrs, New Delhi, 1982, p. 938.
21. Ibid., pp. 937-958.
22 . Diaz, S.M., Parvading Corruption in Contemporary Society, IJL of Criminology, July 1965, p.
152.37
Unscruplous industrialists, businessmen, contractors, tax-evaders
and smugglers are too ready to provide the finance for successive
elections. Where ministers collect funds for their party, executive
officers naturally get involved and are compelled to protect the said
erring persons.23 Obviously, therefore, some officials of the
administration secure the protection of politicians and such favoured
officials get the best positions and promotions. In their turn these
officials use corrupt means and nepotism to please their political
masters.
(ii) Administrative delays and read-tapism is another major cause of
corruption and this has led to the dishonest practice of giving speed
money.24
(iii) Rapid industrialization and consequent urbanization has changed our
values in such a way as to enhance the importf oece of status through
possession of money.25
(iv) The emergence of a class of white-collar criminals indulging in tax
evasion, under-invoicing, over-invoicing of export and import, sub-
standard performance of contracts, hording, profiteering and
blackmarketing etc. have afforded unprecendented opportunities for
corruption to public servants.26
(v) In an economy of expending money circulation, moral and ethical
values have considerably slackened resulting again in corruption.
23 . Singh, L.P., Administrative Change, Vol. II, No. 2,1984, pp. 169-170.
24 . Santhanam Committee Report 1964, 8-9.
25. Ibid.
26. Ibid., p. 11.38
(vi) Misplaced sympathy for corruption public servants is another factor
for encouraging corruption.27
(vii) It is also said that existing anti-corruption law agencies are totally
inadequate to prevent higher-level corruption.
(viii) Inadequate financial resources by way of monthly salary resulting in
economic deprivation coupled with the increase of consumerism and
commercialism in the environment is another factor for corruption.
(ix) Social obligation towards the members of one's family, the
customary practice of giving dowry for a daughter's marriage and
the hankering for social status have been responsible for corruption
to a certain extent. It is true that no person is corrupt at his birth but
the environment in which he lies including the various institutions
and associations around him make him learn the techniques and
methods of corruption. The Santhanam Committee had aptly pointed
out that corruption can exist only if there is some one willing to
corrupt and capable of corrupting.
F. BRIBERY AND CORRUPTION
A colloquial word associated with corruption is that of 'Bribery' and
hence, it becomes appropriate to clarify the meaning of the latter. Although
the words 'bribery' and 'corruption' seem to have been used synonymously
in the past but the former seems to have narrower cannotation. It is bribery
to give a public servant money or property of any value in exchange for an
27 . Santhanam committee Report, 1964, p. 10-11.
28 . Singh, N.K., "Bureaucracy and Corruption Administrative Changes", Vol. II, 1974, p. 152.
29 . Santhanam Committee Report, 1964, pp. 11-12.39
agreement by the public official to do or refrain from doing something that
is against his official duty. At the same time it is bribery for a public
official to agree to do or not to do something in derogation of his duty in
of)
exchange for money or property.
Broadly speaking, corruption refers to all sorts of dishonest dealings
including bribery.31 It comprehends all "improper or selfish exercise of
power and influence attached to a public office or to the special position
one occupies in public life". This is obviously a comprehensive meaning
of corruption and it is in this sense that the word 'corruption' has been
used in this work. It is needless to say, that the inchoate offences of
attempt and abetment in relation to the aforesaid conducts will be naturally
included in this study.
G. SOCIOLOGICAL BASIS OF CORRUPTION
There is a thin dividing line between approaches adopted by
sociologists and criminologists while viewing the phenomenon of
corruption. In fact, sociological approach complements and supplements
the criminological approach towards the phenomenon of corruption.
However, the fact remains that sociological approach towards 'corruption'
being essentially normative, has a wider scope and larger dimensions.
Sociologists view the phenomenon of corruption in relation to the
group interest in a specified social system. While perceiving the culture
30 . Neil C. Chamelin Kenneth R. Evans, "Criminal Law for Policemen", 2nd Ed. C. 1976, 1971,
p. 204.
31 . Webster's New World Dictionary, 2nd College Ed. p. 319.
32. Government of India (Ministry of Home Affairs) Report of Committee on Prevention of
Corruption, New Delhi 1964 (Santhanan Committee, 1964, p. 5).40
milieu of a social system, the customs, beliefs and artifacts which form the
culture elements of a social system; sociologists concern is to view the
interaction between these elements and social system. These cultural
elements, which form the basis of conduct norms in a society, pave the way
for understanding a particular phenomenon from sociological point of
view.
Thus, sociologically speaking, the term 'corruption' has been
defined in relation to the norms of common interest.
A bribe is defined as a "price, reward, gift or favour bestowed or
promised with a view to pervert the Judgment or corrupt the conduct
especially of a person in a position of trust, as an official or voter.
Encyclopaedia of Social Sciences provides that "Bribery is the
practice of tendering and accepting private advantage as a reward for the
violation of duty. To bribe is to control by means of tengible inducements
rather than by persuasion or coercion... Bribery also involves an intention
to influence and to be influenced in a sense incompatible with good faith,
and passes by degree to the offering and receiving of favours in which the
offering shows but a vague desire to keep on good terms and the receiving
entails no more than perfunctory thanks. The concept likewise implies that
the nature of the duty involved is distantly understood. As the vagueness of
obligation increases, acts of bribery merge into bargaining, price setting
and term making in general".34
33 . Rex V. Whitaker, 3 K.B. 1283 (1914).
34 . Lasswell Harold D. 'Bribery' "Encyclopaedia of the Social Science", Vol. 1, Seligman, Edwin
R.D. et al. The Macmillan Company, New York (1962), p. 690.41
The term 'bribery' and 'corruption' are used as synonyms to each
other. In fact both the terms are of a social group in a particular social
system. Any violation of these norms by pacing the special interest of an
individual over the common interest of a social group in a social
organisation has been termed as 'corruption'.
The authors maintain that bribery is an instance of expected or
realized value gain in a corrupt act. Some corruption proceeds, not by
inducement, but by creating an expectation or realization of avoided losses.
"All values may be at stake, since, corruption may be engaged in to avoid
foreclosure of mortgage (wealth), to prevent a political loss from blocking
renomination (power), to preclude blackmail (respect and rectitude), to
avoid being beaten up (well being), to prevent exclusion from inside
information (enlightenment), to prevent his qualification as a candidateT
for further training and competition (skill) or to forestall loss of friends
(affection). The various participations in a sequence of corrupt conduct
may have very similar or very different perspectives in regard to their own
goal values".35
The term 'corruption' has very wide social ramifications. Therefore,
different sociologists have expressed their articulations on the subject in
different ways. Moreover, with the establishment and development of
various social institution in a social organization and the perspectives on
the functioning of such institutions in a social organization and the
35 . Rogow and Lasswell, op.cit., The Functional definition of Corruption as brought out of Rogow
and Lasswell as discussed above finds expression in Indian Laws of Corruption, See note
"Indian Legal System".42
perspective on the functioning of such institutions becoming clear, the
approach to the study of phenomenon of corruption becomes divergent.
H.A. Brasz defines 'corruption' with relation to power. According
to Brasz :
" I propose to interpret corruption in the sociological
sense as meaning the corrupt exercise of derived
power, or the stealthy exercise of derived power, or •
the stealthy exercise of power on the basis of the
authority inherent in that power or on the basis of a
formal competence to the determent of the objectives
of the original power and to the advantage of outsiders
under the pretence of a legitimate exercise of
power".36
It is clear that sociologists' concern is the safeguard of community and
common interest in a social system. A sociologist views the phenomenon
of corruption as the exploitation of institutions rooted in a social system for
the welfare and amelioration of common men for one's own individual
benefits. Robert C. Brooks considers corruption as the "intentional
misperformance or neglect of a recognised duty, or the unwarranted
exercise of power, with the motive of gaining some advantage more or less
personal." Brooks does not consider corruption and bribery as
synonymous to each other. According to him, 'bribery' is narrow, more
direct, less subtle. On the other hand, 'corruption' is of wider import and
may include bribery also.
36. Brasz, H.A., "Some notes on the sociology of corruption" Sociological Mearlandica, 1:2
(Autumn, 1963) cited in, Heidenenheimer, Arnold J. (edited) "Political Corruption" Holt
Reinbart and Winston, New York (1970), p. 41-45.
37. Brooks, Robert C, "Corruption in American Politics and Life", Dodd, Mead, New York
(1910), p. 49.43
W.F. Wertheim extends the scope of corruption to other social
institutions as well. According to him, "the concept also implies bribery of
person other than public servants, e.g. politicians, Trade Union Leaders,
Journalists, members of the liberal professions, electors and most
important, employees of private industry.
With the emergence of new socio-political order, sociologists have
frequently referred to the political systems and institutions related by a
political system. Thus, the phenomenon of corruption was sought to be
analysed in relation to 'power', 'politics' and 'public offices'. The political
power being the fountain-head of all power and with the control of State
administrative apparatus by the political bosses, sociologists'
circumspection of defining and analyzing the phenomenon of political
corruption grew more. Such an analysis became more relevant for the
democracies where power flowed through the boxes of ballot. The
behaviour of politicians who in the words of H.A. Brasz had: 'the pretence
of being absolutely loyal to the principal whist in actual act being intent on
benefiting oneself and/or third parties became the subject of greater
sociological inquiry. Since the politicians, in order to place their special
interest paramount, established a nexus with other public officials and
public servants who also made hay while sun of political power shown
over their heads, the phenomenon of 'political corruption' had to be
defined with all its contours and ramifications.40
38 . Wertheiem, W.F., "Sociological Aspects of Corruption in Southeast Asia", quoted in "Political
Corruption", Heidenheimer, Arnold, J. op.cit. p. 196.
39 . Brasz H.A., op.cit, p. 8.
40 . For the role of politicians and their Abuse and misuse of power, and their nexus with public
servants in generating the phenomenon of corruption.44
Joseph J. Senturia defines political corruption as "the misuse of
public power for private profit.41 According to him, an act should be
regarded as corrupt when the "best opinion and political morality of the
time, after an investigation of the intentions and circumstances of the act,
reach the conclusion that in this act the public interest is being sacrificed
for the benefit of personal interest.42
The term 'Political Corruption' has now acquired a technical
scintillation. Thus, Charles P. Taft views the phenomenon of corruption as
follows : "Political Corruption in a technical sense is a willful exploitation
ofpolitical office or opportunity for personal gain. Corruption involves an
unlawful act (or failure to act) and a tangible or in-tangible benefit. The
corrupt individual defines the situation in term of personal aggradizement,
rather than community service. The machinery of Government is
manipulated in the interests of predatory groups. Politicians, criminals and
businessmen employ the resources of the community for their own ends,
rather than for those of the general welfare.
In view of the foregoing, it may be concluded that the sociologists'
take a broader view of the phenomenon of corruption. However, by and
large, all of them are in agreement that corruption is :
(a) Violation of conduct norm of a social group;
(b) Placing special or personal interest above the common interest;
41 . Senturia, Joseph, J. "Political Corruption" (Edited), in Seligman Edwin, R.A. et al.
"Encyclopaedia of Social Science", op.cit, p. 448.
42. op.cit.
43 . Taft, Charles, P., "What is the civic conscience" Annals of the American Academy of political
and social Science, 280: 142-148 (March 1952), quoted in Elliott, Mabel A. et al. "Social
Disorganization" (Fourth Edition) Harper and Row, New York (1961), p. 520.45
(c) Stealthy exercise of derived power;
(d) Exploitation of public or political office for personal gains;
(e) Giving the pretence of loyalty to the principal whilst in actual
practice being intent in benefiting .oneself and/or third party;
(f) The phenomenon may occur in governmental or private institutions
or agencies.
In more modern context, corruption may be "seen as a concomitant
phenomenon accompanying the politico-administrative process.44
However, as pointed out by John Waterbury, "normatively, a public
functionary may be considered corrupt whether or not law is being
violated.45 On the other hand, in the legal sense, corruption. is self-
regarding behaviour on the part of public functionaries that directly
violates legal restrictions on such behaviour.
H. CRIMINOLOGICAL BASIS OF CORRUPTION
The foregoing discussion reveals that sociological analysis
emphasize that an act which laces common interest of a social group
subordinate to special or the individual interest is an act of 'corruption'.
Therefore a social group may endeavour towards a strict adherence of the
conduct of its members to place special interests subordinate to the
common interest. Any violation of this conduct will be a social deviation
and hence a 'crime'. It is, however, important to note that sociological
definition of 'corruption' which encompasses multitude of deviations may
44 . Waterbury, Jhon, "endemic and Planned Corruption in a Monarchial Regime", world Politics,
July 1973, p. 534.
45. Ibid.46
not find place in the criminological definition in to. No doubt,
criminological definition of 'corruption' may be based upon normative
orientation. In fact, both the approaches towards the phenomenon of
corruption "recognize the notion of the abuse of power and influence for
private ends.46 However, Criminology and Criminal Law do not recognize
the multitude of activities as falling within the arena as sociological
approach does. Since 'Corruption' has been reognised as a threst to social
system and acts of corruption as a violation of the norm of placing special
interest over common interest, it has found place in the criminal law.
Thorsten Sellin remarkably analyzes the issue in these words. "Among the
various instrumentalities which social groups have evolved to secure
conformity in the conduct of their memers, the Criminal Law occupies an
important place, for its norms are binding upon all who lie within the
political boundaries of a state and are enforced through the coercive power
of that state.47 According to Sellin, "the criminal law may be regarded as in
part a body of rules which prohibit specific forms of conduct and indicate
forms of conduct and indicate punishments for violations. The character of
these rules, the kind of type of conduct they prohibit, the nature of the
sanction attached to their violation, etc. depend upon the character and
interests of those groups in the population which influence legislation. In
some states these groups may comprise the majority, in others a minority,
but the social values which receive the protection of the criminal law are
ultimately those which are treasured by dominant interest groups.48
46 . Waterbury, Jhon, op.cit., p. 533.
47. Sellin, Thorsten, A Sociological Approach "The Sociological of Crime and Delinquency",
Second Edition, Wolfgang, Marvin E. et al. Edited, Jhon Wiley and Sons Inc, U.S.A. (1962),
p. 5.
48 . Ibid., p. 5.47
Sellin rightly maintain that dominant interest groups shape the
criminal law of state. But, at the same time, as he points out with
exactitude, that in some cases, even in democracies the importance of
strong minority groups can be seen shaping some part of the criminal
law.49 Therefore, consequently one comes across the terms like 'deviation
from the norms', violation of duty' or 'betrayal of trust' in the definitions
of corruption.
In order to fix up the proper perimeters of the definition, criminal
law specifically relates the acts of 'violation of a duty' or 'deviation from
the norms' in relation to a particular office - by and large, a 'public office'
or a 'governmental office'.
It is relevant to record some of the definitions in this behalf.
According to Samuel P. Huntington, "Corruption is behaviour of
public officials which deviates from accepted norms in order to serve
private ends.50
John T. Noonan Jr. defines bribery as "the act or practice of
benefiting a person in order to betray a trust or to perform a duty meant to
be performed freely. Bribe occurs in relation to public official and,
derivatively in private transactions.51
Jacob Van Klaveran observes that "in everyday life corruption is
taken to mean that a public servant abuses his official power in order to
procure for himself an extra income from the public.52
49 . Sellin, Thorsten, op.cit., p. 5.
50. Huntington, Samuel, P., "Political order in changing societies", New Haven (1968), p. 60.
51 . Noonam, Jr. Jhon T. Encyclopaedia of Crime and Justice, Vol. 1, Kadish, Sanford H. et al.
(Edited) (The Free Press, New York) (1983), p. 19.
52 . Klaveren, Jacobvan, quoted in "Political corruption" Heidenheimer, Arnold, op.cit., p. 195.48
Committee on Prevention of Corruption maintains, "In its widest
connotation, corruption includes improper or selfish exercise of power and
influence attached to a public office or to the special position one occupies
in public life.
It is evident from all these definitions as cited above that they have a
sociological stratum. It is obvious that the choice of variables, contrary to
sociological ethos, is somewhat limited. Nevertheless, the normative
orientation of these definitions may not be under-estimated.
In fact, any criminal law definition of 'Corruption' may not be and
should not be devoid of sociological orientation. "The state of the criminal
law", asserts W. Friedmann, and rightly so, "continues to be as it should a
decisive reflection of the social consciousness of society. What kind of
conduct an organised community considers, impairing the life, liberty or
property of the offender, is a barometer of the moral and social thinking of
a community. Hence, the criminal law is particularly sensitive to changes
in social structure and social thinking.54 And factually, criminal law has, by
and large remained a decisive reflection of the social consciousness of
society.55
Criminal law has attempted to grapple with the new realities which
are the product of new socio-economic changes taking place in different
socio-economic systems world over. The changes had to be affected in
53 . Report of the Commission on Prevention of Corruption, Government of India, Ministry of
Home Affairs, (1963), p. 5.
54 . Friedman, W. "Law in a changing society", Stevens and Sons Limited, London (1959), p. 165.
55 . Enactment of Prevention of Corruption Act, 1947 and subsequent amendment to the ct,
amendment of section 21 Indian Penal Code are an illustration to the point. For Full discussion
see Note "Indian Legal System", Infra.49
view of the transition of society from one pattern to another pattern. In the
words of W. Friedmann, "Social changes affect criminal law in many,
through development in Science, especially in biology and medicine;
through changes in the moral and social philosophy, through changes in the
structure of the society especially in its transition from a rural, self
contained and relatively sparsely populated, to a highly urbanized and
industrialized pattern."56 However, criminal law howsoever sensitive to the
social change, has not always been able to keep pace with social
transformation or social metamorphosis to cope up with the new
challenges. Even though a plethora of enactments on 'Socio-economic
offences' have sprung up, yet all the new and ever increasing criminogenic
areas do not seem to have been covered by these enactments and laws.
In a special reference to corruption, Amitab Kundu rightly remarks
that, "It is therefore, not possible to work out on the basis of the definition,
permanent criterion for identifying Corrupt activities in the dynamic world
of ours where ethical values change over time and space".
(a) LEGAL DEFINITION OF CORRUPTION
The offence of corruption and bribery has been defined under
various statutes of Indian Legal system by using different expressions.
The Indian Penal Code, 1860, employs the expression "accepting
gratification other than legal remuneration". It also includes "accepting
56 . Friedman, W., op.cit, p. 166.
57. Kundu, Amitab, "Anatomy of Corruption", Southern Economic Review, Annamali University
Tamil Nadu, April (1973), p. 1.50
valuable things" under certain circumstances within the definition of
'bribery'.
The Prevention of Corruption Act, 1947, uses the term 'Criminal
Misconduct'.
(The) Representation of'People Act, 1951, strikes with the term
'bribery'. However, under this Act, the term 'bribery' is not used for the
same purposes, as in other two statutes viz., Indian Penal Code and
Prevention of Corruption Act.
All these definitions of corruption may be discussed separately as
under:
(i) ILLEGAL GRATIFICATION
Section 161 of I.P.C. defines the offence of 'illegal gratification'.
According to Section 161, the offence of accepting or obtaining illegal
gratification is committed when :
I. A public servant or a person who expects to be a public servant;
II. Obtains or agrees to accept or attempts to obtain, for himself or for
any other person;
III. Any gratification other than legal remuneration;
IV. Such gratification was accepted as a motive or reward, for doing or
forbearing to do an official act; showing or forbearing to show
favour or disfavour to someone in the exercise of his official
functions.51
The Section 161 is further extended by an explanation which
provides that the expression 'illegal gratification' is not restricted to
pecuniary gratification or to the gratification estimate in money only.
Thus, 'gratification' forms the basis of liability under Penal Code. It
is the term used for accepting a bribe by the public servant. It is, therefore,
desirable to consider this concept in all its ramifications.
Webester's Dictionary gives the meaning of the word 'gratification'
as pleasure or satisfaction. It appears that it is in this sense that the
expression has been used in this section of I.P.C. such meaning is quite
comprehensive taking within its fold various forms and modes of bribes.
The courts have taken the view that 'gratification' is a very wide
term. It was held in State V. Pundlik Bhikaji Ahire and Another , that:
"gratification' is inclusive of all satisfaction of desire or appetite".
However, the expression 'gratification' has been, by and large, estimated
in terms of money.59 Since money is one important source of affording
pleasure, in as much as it implies command over things which afford
pleasure. Though, the objects of pleasure should form the part of
gratification, but courts insist that it should be of some value.
In Trilochan Singh V. Karnail Singh60, the court held that
gratification must be of some value, though it need not be something
estimable in terms of money (only).
58 . A.I.R. 1959, Bomb. 543.
59 . A survey of Reported cases has disclosed the total absence of any case where the prosecution
as launched for gratification other than money.
60 . A.I.R. 1968 Punjab, 416 (F.B.)52
Thus, the modern forms of corrupting the public officials, such as
entertaining them or their family members are excluded from the purview
of the definition of illegal gratification. Since it has been insisted upon that
illegal gratification should be of some value.
Mens-rea : The two important elements which constitute a crime viz. (I)
Mens-rea, and (ii) actus reus do not find place in the law of corruption and
bribery.
Thus, Supreme Court in Shiv Raj Singh V. Delhi Administration
held that it is immaterial for the courts to consider whether or not the
accused public servant was capable of doing or intended to do such an act.
It is sufficient if he has taken the illegal gratification other than legal
remuneration.
A mere demand or solicitation of gratification by a public servant
amounts to an offence under Section 161 of Indian Penal Code.62 Thus, a
person shall be guilty even if the act of taking gratification has not been
completed. There may be a situation where the receiver of money may not
be, in fact, in a position to render any assistance to the giver of the illegal
gratification and he receiver may be well aware of it. He might not have
even intended to do what the receiver holds himself out as capable of
doing. The courts, under such circumstances, have held the receiver guilty
of the offence of cheating as well as under section 161 of Indian Penal
Code i.e., accepting illegal gratification.
61 . A.I.R. 1968, S.C. 1419.
62 . Mubarak Ali v. State, A.I.R. 1958 M.P. 157.53
The institutionalized forms of bribes have received due attention of
the courts. It appears that courts have in mind the different modes of
offering bribes in our socio-political system. Thus offering of something as
Bakhshish, Donations or some other forms have been held within the
purview of 'illegal gratifications'.
The Supreme Court appears to be fully conscious of changing socio-
cultural milieu of the country. In an under noted case, court observed that
'bribes are paid not only to get unlawful things done promptly since time
means money, bribes are paid to expedite the matters which a public
servant would otherwise also do. Thus, where gate paes and proformas are
to be signed by the excise Inspector, the signatures can carry a price.63
(b) VALUABLE THINGS
Section 165 of I.P.C. makes the acceptance of a gift or a present
without consideration an offence. Section 165 prohibits the acceptance or
obtaining of valuable things like presents or gifts by a public servant from
the persons with whom the public servant is officially connected. The
principle underlying this provision is to prevent public servants from
circumventing the law which prohibits accepting illegal gratification
(under section 161) by accepting valuable gifts and presents.
This section appears to be in additional provision of law which
makes the legal position all the more clear. It may be pointed out that,
otherwise also valuable gifts and presents would necessarily fall under the
definition of 'illegal gratification' which has been held to mean anything
63 . Crown Prosecutor v. R.K. Pillai, A.I.R. 1948, Mad. 281.54
estimable in money. However, the legislature, by way of extra caution has
enected. Section 165 which prohibits the acceptance of a valuable litigent
or applicant with whom he has no other connection. Therefore, the
intention of the legislature is to make an act of accepting a present, which
is traceable to a corrupt motive, as punishable.
With regard to accepting a valuable thing by a sub-ordinate official
before whose superior officer the matter is pending, it is not necessary that
a person should be subordinate in respect of the matter in question, in the
sense that the matter must belong to the sphere of duties which is common
to both the subordinate and superior officer, but subordinate would include
a general administrative subordinate also.64 Such a provision would not
only apprehend the corrupt public servants but their touts and agents as
well.
Thus, it is clear from the foregoing discussion that the framers of
I.P.C. in their own wisdom, have endeavoured through these provisions to
curb the phenomenon of corruption among public servants by bringing in
two common modes of corruption viz., 'accepting illegal gratification' and
'obtaining valuable things' within the arena of criminal law.
The phenomenon of corruption and bribery is a complex problem.
The methods to indulge in this type of criminality are so dubious and ways
to obtain bribes are so mysterious, that it is not always possible for the law
makers to comprehend the new and novel situations which arise in this
behalf in a society. Hence, laws are repeated and amended, and new
64 . In re R.G. Jacob, A.I.R. 1961, Mad. 482.55
enactments are passed to cope up with the new situations to meet the new
challenges of crime and criminal behaviour.
Therefore, to meet the new challenges, it was found that the
provisions of I.P.C. were not adequate enough to cover the new forms of
corruption which were the result of new socio-economic developments of
the country. This realization led to the enactment of prevention of
Corruption Act, 1947. Under P.C. Act, a new and comprehensive form of
corruption was recognised which was defined as 'Criminal Misconduct'.
(c) CRIMINAL MISCONDUCT
Section 5 of P.C. Act, creates a new offence which has been termed
as 'criminal misconduct by public servants in the discharge of their official
duties.
The substantive law of corruption is laid down in Section 5 of the
P.A. Act. However, it appears that these provisions supplement the I.P.C.
provisions from Sections 161 to 165, although the offence under Section 5
of P.C. Act is wider than the offence defined under Section 161 of I.P.C.65
The Supreme Court while drawing a comparison between the
offence of 'Criminal Misconduct' under P.C. Act and 'accepting illegal
gratification, under I.P.C. has held that Sections 5(1 )(a) and (b) of P.C. Act
are the aggravated forms of Section 161 and 162 of I.P.C. and the intention
cannot be to abrogate the earlier offence by the creation of new offence.
65 . Daneshwar Narain Saxena v. Delhi Administration, A.I.R. 1962 S.C. 195.56
These two offences can co-exist and the one will be considered as
overlapping the other.66
The introduction of offence of 'Criminal Misconduct' is of far
reaching consequences under Indian Criminal Law system. The crimes of
misconduct, attributed to a public servant, according to Section 5 consist of
the following :
(i) Habitually accepting of obtaining or agreeing to accept or
attempting to obtain by public servant, from any person for himself or for
any other person, any gratification (not legal remuneration as motive or
reward as mentioned in Section 161 of I.P.C.
(ii) Habitually accepting or obtaining or agreeing to accept or
attempting to obtain for himself or for any other person any valuable
thing without consideration or for a consideration which he knows to be
inadequate from any person whom he knows to have been or to be likely
concerned in any proceeding or business in any proceeding or business
transacted or about to be transacted by him or having any connection with
the official function of himself or of any public servant to whom he is
subordinate or from any person whom he knows to be interested in or
related to the person so concerned.
66 . Om Prakash Gupta v. State of U.P., A.I.R. 1957 S.C. 458.
67. Section 5 of P.C. Act, which was a temporary provision and was extended from time to time
was made a permanent provision of P.C. Act by virtue of Prevention of Corruption
(Amendment) Bill, 1957. According to Statement of Objects and Reasons, "this Section (i.e.
Section 5) had provided a valuable weapon in the attempt to eliminate corruption from public
services" (quoted in Mathur's A.P. "Commentaries on the Prevention of Corruption Act, 1917
and The Criminal Law (Amendment) Act, 1952" Revised and Enlarged by K.C.- Mehrotra,
Second Edition, Eastern book Company, Lucknow (1976), p. 130.57
(iii) Dishonesty or fraudulently misappropriating or otherwise
converting for his use any property entrusted to him or under his control
as a public servant or allowing any other person to do so or attempting to
do any such act.
(iv) By corrupt or illegal means or by otherwise abusing his position
as public servant obtaining for himself for any other person any valuable or
pecuniary advantage or attempting to do any such act.
(v) Possessing or allowing any person on his behalf to possess or to
have at any time during the period of his office for which the public
servant cannot satisfactorily account, of pecuniary resources or property
dis-proportionate to his known sources of income.
It is evident that Section 5 of the Prevention of Corruption Act is a
conglomerate of many offences spread over I.P.C. However, it .may be
pointed out that before attracting the provision of this clause the
requirement of Section 161 of I.P.C. has to be satisfied.68
(a) Habitually accepting gratification : The new and wide ranging
expression used under Section 5(1 )(a) is accepting illegal gratification
"habitually" by a public servant. Supreme Court has rightly held that the
offence under section 5(l)(a) does not consist of individual acts of bribe-
taking as in section 161 of the I.P.C. but is of a general character.
Individual instances may be useful to prove the general averment in
particular cases but it is by all means necessary because of the
pres8umption which Section 5(3) required the Court to draw.69
68 . Dapat Singh v. State of Rajasthan, A.I.R. 1968 S.C. 29.
69. Vishwabhushan Naik v. State of Orissa, A.I,.R. 1954, S.C. 359; C.R. Bansi v. State of
Maharashtra, 1971 Cr.LJ. 662.58
Thus it is the expression of habitually accepting or obtaining of
illegal gratification which enlarges the scope of the offence of 'Criminal
Misconduct'. The establishment of proof of habitual corruption and
habitual bribery required under clauses (a) and (b) of Section 5(1) is the
crux of the offence under these clauses of Section 5. However, neither the
P.C. Act nor any other legal provision defines or lays down any guidelines
which would be held to constitute the proof of the habitual commission of
an offence. However, Halsbury 'Laws of England" provides as follows :
"There is, however, no exhaustive definition of a habitual criminal and the
question whether an offender is or is not a habitual criminal is always one
of fact for jury. The mere fact that he has on a previous occasion been
provided to be a habitual criminal and has subsequently relapsed into crime
is not of itself conclusive. The accused is always entitled to call evidence
to show that at material time he is not a habitual criminal.
In ordinary sense the word "habitually" implies a tendency on the
part of a person to frequently repeat the same Act. Thus, in law, the habit is
to be proved by aggregate of facts. In connection with Section (1) (a) and
(b) of P.C. Act, it seems to be necessary to make out a number of instances
of bribery spread over a reasonable period of time. Though, the Legislation
does not impose any limitation of instances in this behalf. Still, in order to
the handicaps of the Prosecution, Supreme Court has held71 that there is no
illegality in the charge of habitually accepting bribe if particular instances
have not been mentioned therein.
70 . Halsbury, Laws of England, 2nd Edition, Vol. IX, p. 237.
71 . C.R. Bansi v. State of Maharashtra, op.cit., p. 662.59
(b) Misappropriation of Property : Section 5(1) brings within its ambit
the dishonest or fraudulent misappropriation or use of any property by a
public servant or being allowed by a public servant or being allowed by a
public servant to do so. In order to make out the offences, the property
must be entrusted to or under the control of a person as a public servant.
It is relevant to point out here that Section 405 of the Indian Penal
Code makes the dishonest misappropriation of property a penal offence.
The two sections, in essence, are not identical. In this behalf sub-section
(4) of Section 5 makes the position clear by laying down that provisions
under this section (i.e. Section 5) are "in addition to, and not in derogation
of any other law for the time being in force. "In this regard, Supreme Court
has ruled that other law does not mean identical law in which case the
word "other" will have no meaning. There can, therefore, lie no doubt,
whatever, the Section 5(1) (c) of the Prevention of Corruption Act, creates
a new offence called Criminal Misconduct and can not be implication
displace the offence under Section 405 of Indian Penal Code.72
There has been a good deal of controversy among different High
Courts regarding the overriding effect of Section 5(1) (c) of P.C. Act on
Section 409 of I.P.C., i.e. Criminal Breach of Trust. The Punjab High
Court had held that Section 5(1 )(c) of the Prevention of Corruption Act
repeals Section 409 of Indian Penal Code.73 However, other Courts viz.
Allahabad74, Madras75, Bombay76, Hyderabad77, Calcutta78 and Himachal
72 . Om Prakash Gupta v. State of U.P., A.I.R. 1957 S.C. 458.
73 . State v. Gurucharan Singh, A.I.R. 1952 Punj. 89.
74 . Bupnarayan Saxena v. State, A.I.R. 1952 all. 35.
75 . Inre Satyanarayanamurthy, AIR 1953 Mad. 137.60
Pradesh had held that it did not do so. The Supreme Court set at rest the
controversy by holding that sections 5(1) (c) and 409 of I.P.C. created two
distinct and separate offences and hence Section 5(1) (c) does not repeal
section 409 of Indian Penal Code.80
The essential ingredients under Section 5(1 )(c) are: (a) that the
accused must be a public servant at the time of the commission of the
offence; (b) that he dishonestly or fraudulently misappropriates or
otherwise converts to his own use any property entrusted to him or under
his control (c) or allow any other person to do so.
The Act does not define the terms "dishonestly" or afroudulently.
These terms have been defined under I.P.C. Though the terms
"dishonestly" do not mean exactly the same thing. However, in both the
cases it is intense degree of mens rea which make the offence grave. In
such cases the existence of criminal animus frendi is essential. In a case,
where a booking clerk was under an obligation to hand over the cash
collected from vehicles to the cashier of the transport yard, did not do so
for many days and retained money for such period, handed it over only
when he was suspended, it was held that it was a case of dishonest
misappropriation.
(c) Abuse of Position and Pecuniary Advantages : Section 5(1) (d) of
P.C. Act, has a wider scope and covers the activities of corrupt public
76 . State v. Sahebrao Govindrao Jadhav, AIR 1954 Bombay 549.
77 . K. Jayarama Iyer v. State of Hyderabad A.I.R. 1954 Hyd. 56.
78 . Amarendra Nath Ray v. State AIR 1955 Cal. 236.
79 . Giachand Madhok v. State AIR 1954 Hiraachal Pradesh, 76.
80 . Om Prakash Gupta v. State of U.P., AIR 1957,458.
81 . Liladhar v. State of Himachal Pradesh AIR, 1959.You can also read
